A group of foreign-born fishermen and their wives have threatened to file a constitutional motion against the government if it does not halt movement on the Fisheries Bill, 2020, which seeks to prevent non-Bahamians from engaging in the commercial fishing industry.
In a letter to Minister of Agriculture and Marine Resources Michael Pintard, Alfred Sears, QC, who represents the group, said the Fisheries Bill, 2020, and the Immigration (Amendment) Bill, 2020, which seeks to ensure that work permits are not granted for commercial fishing, are “unconstitutional, illegal and will irreparably harm” his clients.
“In the circumstances, we hereby request a suspension of the assent, publication in the gazette and commencement of the instant acts to allow consultation with our clients on the matters raised herein,” Sears wrote in a December 22 letter.
“If we do not receive a satisfactory response to our clients’ request by Wednesday, December 30, 2020, we are under firm instructions to file a constitutional motion, without further notice to you.”
Attorney General Carl Bethel and Minister of Immigration Elsworth Johnson were copied on the letter.
The bills were recently passed in the both houses of Parliament. They are expected to be presented to Governor General C.A. Smith for assent.
Sears wrote that the discriminatory provisions in the bills “breach certain fundamental and natural justice rights of our clients”.
“Further, there was a glaring breach of our clients’ legitimate expectation to be consulted about the contents of the said bills,” he wrote.
“While our clients support the need to address the vexing problems of illegal poaching, unreported fishing and marine conservation, there is no reasonable justification in treating holders of spousal permits, permanent residency certificates and Bahamian owned commercial fishing enterprises in such an unfair, unreasonable and discriminatory manner.”
Professional divers
Sears’ clients include: Fish Farmers Ltd.; Three Ro Bahamas Limited; 3 Kids Corp Bahamas Ltd; Audley Seafood Ltd; Geneva Brass Seafood; Paradise Fisheries Ltd; Mr. Morazan Zuniga Jackson and Mrs. Maria Jackson; and Mr. Jaime Reynaldo Perez and Mrs. Racquel Anthyna Major-Perez.
He noted that his clients are “wives of or holders of spousal permits, permanent residency certificates and 100 percent Bahamian owned commercial fishing enterprises based in New Providence”.
He said they use dive boats to harvest lobster, conch and rely on qualified commercial fishing divers.
“Commercial fishing by the diving method is the most sustainable method of fishing, with no by catch, escape of traps and pots and dragging on ocean floor during bad weather and no whale entanglements,” he wrote.
“There is not an adequate number of qualified and experienced Bahamian commercial fishing divers in New Providence, especially during lobster seasons, to meet the labor demands of commercial fishing dive boats on New Providence.”
Sears wrote that his clients started a professional certification program for commercial fishing divers in 2016 and met with Pintard in May 2019 and July 2019 “to discuss their enterprises reliance over the years on the qualified non-Bahamian commercial fishing divers, with spousal permits and permanent residency status, and offered to provide apprenticeship training on their boats, in partnership with the government in establishing a national training and professional certification program to increase the supply of more Bahamian professional commercial fishing divers”.
“Based on these discussions, our clients had a legitimate expectation that they would have been consulted on the content of any legislation dealing with the commercial fishing industry,” Sears wrote.
He noted that his clients only saw a copy of the bill around the time the bills were presented to Parliament on November 18, for first reading.
He continued, “These divers, who have worked with our clients’ enterprises for an average of 10 to 15 years, make their living by commercial fishing diving and constitute a vital part of the operational capacity of our clients’ commercial fishing enterprises.
“These commercial fishing divers annually have received compressor permits, some of which were granted by you from the Department of Marine Resources. Our clients’ enterprises utilize about 180 Bahamians and about 80 non-Bahamian commercial fishing divers with spousal permits and permanent residency certificates.
“The removal of this latter component will destroy the income of the divers’ Bahamian families and make it impossible for our clients’ enterprises to operate profitably, thereby, compromising our clients’ businesses and the livelihood of Bahamian families.”
Sears argued that the removal of the divers will jeopardize his clients enterprises’ annual contribution of $3 to $4 million to fuel suppliers to their boats per season; to wholesale grocers of $800,000; of $132,000 per season to maintenance repairs and new equipment; and the catch revenue of $6 million per season or $8 million direct contribution to the foreign currency earnings from lobster export.
Sears argued that, “There is no data, evidence, or study to establish that our clients, enterprises and their contracted commercial fishing divers are engaged in any illegal, unethical or reckless conduct to justify this total prohibition of professional with the unrestricted right to work, from engaging in the commercial fishing industry in The Bahamas.
“Such total prohibition, in the circumstances, is unconstitutional, illegal and will produce irreparable harm on our clients.
“Moreover, other restricted areas of the Bahamian economy, which are reserved for Bahamian citizens, such as construction and wholesale and retail operations, all allow exceptions in special circumstances or where there is insufficient local expertise.”
The Fisheries Bill, 2020, reads: “No person shall engage in fishing, or be employed on a commercial fishing vessel for fishing other than sportsfishing in the fisheries waters; and use or be employed on a commercial fishing vessel licensed under this act for fishing other than charter sportsfishing, unless that person is a citizen of The Bahamas.”
The bill says that no operator of a commercial fishing vessel shall allow a person who is not a citizen of The Bahamas to engage in fishing in Bahamian waters or use a vessel other than for charter sportsfishing.
Commercial fishing operators are also prohibited from employing non-Bahamians on board their vessel.
A person who contravenes this section is liable on conviction to a fine not exceeding $250,000 or imprisonment for a term not exceeding four years or both.
The Immigration (Amendment) Bill, 2020, states: “The right to engage in gainful occupation or gainful employment granted by any permit issued under this Act does not include a right to engage in commercial fishing; and shall be in every case, subject to the Fisheries Act or any other law to the contrary.”
Former Prime Minister Hubert Ingraham recently raised concern over the pointedly discriminatory provisions in the bill.
“I lament the position taken by the government on this matter,” he said.
“The provision excluding spouses of Bahamians from commercial fishing tarnishes the codification of the fisheries law.
“This offending provision, with an obscenely outrageous penalty, will overwhelmingly, if not exclusively, have a negative impact upon Bahamian women married to foreign nationals who are engaged in the fishing sector.
“It will have widespread ripple effects on human rights of persons legally present in our country with an unrestricted right to work.”
But Johnson, the minister of financial services, trade and industry and immigration, said yesterday that “sometimes you can discriminate legally”.
“There are certain things that only a citizen can participate in in this country,” he said.
“I always tell people, you know, if you’re not a citizen then you should stay out of our business and allow us to do certain things.”
The post Legal action threat over Fisheries Bill appeared first on The Nassau Guardian.
source https://thenassauguardian.com/legal-action-threat-over-fisheries-bill/
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